I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

Michigan Affirmative-Action Ruling A Short-Lived Fight Against The Tide

The federal appeals court decision striking down a statewide referendum banning affirmative action in Michigan universities likely represents the last gasp of a dying legal theory: That minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination.

To conclude a law banning the state from considering race, sex or national origin in hiring public employees or granting admission to state schools was unconstitutional, the majority on the Sixth Circuit Court of Appeals in Cincinnati resorted to an extreme interpretation of two U.S. Supreme Court cases that themselves are showing signs of wear. The decision by the full 15-member panel drew strong dissents from judges who said the reasoning stood the Equal Protection Clause “on its head” and enshrined a new doctrine of judicially-imposed racial preferences.

The majority’s holding may soon become moot, anyway. The U.S. Supreme Court may end all racial preferences in college admissions when it hands down a decision in Fisher vs. the University of Texas later this year. If it doesn’t, the high court will have to consider Gratz vs. the University of Michigan since it conflicts directly with not one, but two decisions by the Ninth Circuit Court of Appeals upholding a similar ban on racial preferences in California.

The ruling by eight of the 15 judges on the Sixth Circuit takes a curious road to overturning the Michigan law, which was passed in statewide referendum in 2006. The law itself would seem to be unassailable: The language in it mirrors equal-protection clauses in other state constitutions and even John F. Kennedy’s Executive Order 10925 of 1961 requiring “equal opportunity for all qualified persons, without regard to race, creed, color, or national origin.” The Michigan law uses almost identical language to ban discrimination in admissions to state schools and public employment, although it also bans “preferential treatment” as well.

The Sixth Circuit relied on two U.S. Supreme Court decisions to determine that the law, in fact, burdened minority groups by making it harder for them to have affirmative-action programs enacted at state universities. (The majority didn’t take up the question of public employment or sex-based preferences, so the dissenters concluded that part of the law remains intact.) In a decision written by Judge R. Guy Cole, Jr., the majority compared the plight of a minority student with that of a presumably privileged, non-minority student seeking to establish stronger preferences for children of alumni at the University of Michigan. Under Michigan’s law, the court ruled, the legacy candidate merely had to convince the elected board of regents to change admissions policy, while the minority student would have to convince a majority of voters statewide.

“When two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course,” wrote Cole, a Yale Law School graduate and Clinton appointee.

Dissenters accused Cole of steamrolling over several major flaws in this line of reasoning. First, the Constitution only guarantees minorities protection from discrimination by the majority, not preferences. Second, admissions policies at the University of Michigan are determined by an unelected admissions committee that is theoretically immune to pressure from the elected regents, so the theoretical minority runner in Cole’s example wouldn’t be able to change policy by appealing to the regents anyway. Under the majority’s reasoning, Judge Danny Boggs said in dissent, a child with a mix of races and ethnicities would no longer be protected by the statewide ban on discrimination and preferences. Instead she’d have to “proceed in a large number of political and election campaigns across the length and breadth of Michigan rather than by, as was the case here, convincing voters of Michigan to enact a policy that would under most other circumstances have been held to be laudable.”

To reach the opposite conclusion, the majority cited Hunter vs. Erickson, a 1969 case striking down an Akron, Ohio ordinance that required a majority of voters to approve any local laws regulating housing discrimination. The Supreme Court held that the law set apart one specific type of regulation — racial discrimination — for special treatment and made it harder for minorities to seek redress. The majority also relied upon Washington vs. Seattle School District No. 1, a 1982 decision striking down a state law, also passed by referendum, prohibiting local school boards from initiating busing programs unless under a court’s anti-discrimination order.

The two cases, taken together, establish the idea that the majority can’t pass laws that make it harder for minority groups to get the programs they feel are in their best interests, Cole said. He dismissed the argument made by some affirmative-action opponents that preferences don’t actually help minority students, since they tend to graduate in lower numbers from highly competitive schools where preferences are the greatest. Whether or not that is true is irrelevant, he said; it’s enough if minority groups consider affirmative action to be in their best interests.

More importantly, the hypothetical legacy student has a simple way to grease her path into U. Mich, he suggested: Merely convince the eight regents at each school, who are elected to staggered, eight-year terms, to order the admissions committee to give more weight to alumni kids. Under the state ban on racial preferences, he wrote, minority students have to amend the state constitution and ”only after traversing this difficult and costly road would our now-exhausted citizen reach the starting point of his neighbor who sought a legacy-related admissions policy change.”

Dissenters said the two decisions the majority rely upon aren’t relevant to the Michigan law. The Akron case involved a law that made it hard for minorities to protect themselves against discrimination, not to seek preferences. And the Seattle law would probably be treated differently by the Supreme Court today, since it banned the very sort of racial steering in schools that the high court has subsequently found to be unconstitutional. The court, in Grutter v. University of Michigan, rejected outright quotas but left room for admissions officers to consider race as part of a holistic process.

The Ninth Circuit, usually considered liberal, considered California’s almost identical Proposition 209 as recently as this year in Coalition to Defend Affirmative Action v. Brown. Under conventional equal protection analysis, the court held, “there is simply no doubt that Proposition 209 is constitutional.”

“This lawsuit turns these assumptions on their head,” Sutton wrote. “Democracy, it turns out, has nothing to do with it.”

That may be true, but probably not for long. The U.S. Supreme Court, itself an unelected, nine-member board, may well decide the debate is over and there is a constitutional distinction between racial discrimination and racial preferences.

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Maybe this explains why the lefts call for “anti-discrimination” wages isn’t taking off of the ground. “Equal pay for equal work” they are asking for laws enacting pay on grounds of a persons sex is being discriminated against.

But work is never involved, even though work is inferred. Federal laws give away admission into colleges not based on what a student has earned, but based on race. This was put through in the early 1960s. Today they’ll like to force companies to pay because sex, not work. It looks like a bright spot in an ever blackening nation that welfare through law is opposed.

But at the rate America is sinking now, it is about to become painful clear that we are past the point of no return. Do not recover, do not pass go, do not collect $100 or get a job. What the American People don’t know about our governments is about to push us into being a poverty stricken nation.

Good, and a most excellent idea indeed that a court is finally recognizing the intrinsic evil of legacy preferences . I had long been hostile to all kinds of preferences be it legacy or race. The fast and decisive way of dealing with legacy preferences is for SCOTUS to order the Feds not to give a single cent of tax money to any private school that practices legacy preferences. So there should be no tax money for Stanford, the Ivies, Northwestern , Notre Dame, U of Chicago etc. for research medical or otherwise . Since virtually all private schools practice legacy preferences, then no tax money should be given to private schools. Let private schools like Harvard survive on their own without a single cent of tax money . Legacy preferences are nothing but downright violations of the Equal Protection, “royalty “, “priveleged classes ” clauses of the Constitution And I had been saying these things for a long time. the